3 strikes: 'Let juries decide' - Life sentence shouldn't be up to a judge, justices told



OLYMPIA, WA-- A lawyer for a convicted burglar urged the state Supreme Court yesterday to require a jury, not a judge, to decide whether criminals fit under the state's "three strikes" law before locking them away for life.

David Donnan said Russell Smith's prior criminal record should have been proven to a jury beyond a reasonable doubt.

He argued that the 41-year-old Seattle man shouldn't have to serve a life sentence under the three strikes law because only a judge reviewed his record.

But King County prosecutors contend the right to a jury trial has nothing to do with sentencing -- punishment in Washington has always been left up to a judge.

Deputy prosecutor James Whisman said a judge is perfectly capable of verifying the defendant is the same person who committed the previous crimes and that the crimes are "strikes," or convictions that qualify the felon to a sentence of life without parole.

If the court sides with Smith, it could mean new sentencing hearings for many of those -- more than 200 people -- locked away under the law.

Attorneys disagree, however, on whether any would get a chance for something less severe than life behind bars.

The justices questioned them exhaustively on that point.

Donnan said that because prosecutors failed to prove to a jury that Smith qualified as a repeat offender, the man should simply be sentenced for his latest burglary.

Whisman maintained that all three-strike defendants would have to be brought back to court so a jury could give a nod to their prior records -- a hassle, maybe, but one that he maintained would result in reinstated life sentences for all.

Under Washington's three strikes law, people convicted of three "most serious offenses" on separate occasions are locked away with no chance of parole.

Prosecutors usually show a judge that someone qualifies under the law by presenting the person's conviction records for each crime and having an expert make sure the defendant's fingerprints on the paperwork match.

The Supreme Court's decision -- likely months away -- could also affect those convicted under the state's "two strikes" law for repeat sex offenders because those cases are handled the same way.

Smith earned his third strike in June 1999, when he kicked in the dead-bolted door of his ex-girlfriend's condo. He knocked the phone from her hand as she spoke to a 911 operator, then shoved her against a door and hit her.

Prosecutors said Smith had been harassing her after their recent breakup. He even tried to sneak onto the balcony of her condominium by lowering himself from the roof with a dog leash, according to court documents.

In August 2000, a jury found him guilty of first-degree burglary -- a strike -- and trespassing. Prosecutors say he actually had three prior strikes: a burglary, a bank robbery and an assault on a child.

A fingerprint examiner compared court documents from each case and said they matched. A judge found that at least two of the prior convictions existed, sending the man to prison for life.

Yesterday, Donnan argued that a jury should have decided whether Smith had committed two other strikes. He said the law requires other questions that can increase a sentence -- such as whether a deadly weapon was used, or whether a drug offender got busted near a school -- be posed to a jury.

Other states, such as California, require juries to answer three strikes questions.

In Washington, Donnan said it's a person's right under the state constitution -- an argument he said the Supreme Court has never addressed.

But Whisman said it's not as if defendants aren't getting their right to a jury trial. They wouldn't have been convicted of their prior offenses if they hadn't already been proven.

He said judges make findings about defendants' prior records in all kinds of cases and expressed concern that more than three strikes cases could be affected.

"Making a fundamental change like this, that calls into question everything we do in sentencing, shouldn't be taken lightly," he told the court.

Some currently serving life under the law may not be affected regardless of the court's decision. Some waived their right to a jury trial.

Others did, in fact, have their prior convictions confirmed by a jury because King County prosecutors did it that way between 1993 and 1996.

In 1996, justices upheld the three strikes law in several rulings that led prosecutors to conclude that they didn't need juries to review criminal records.

P-I reporter Tracy Johnson can be reached at 206-467-5942 or tracyjohnson@seattlepi.com


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